Moroney v Annecto Inc and VWA
[2014] VCC 773
•30 May 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-01560
CI-10-01490
| KATHLEEN JEAN MORONEY | Plaintiff |
| v | |
| ANNECTO INCORPORATED | First Defendant |
| AND | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10-11 April 2014 | |
DATE OF JUDGMENT: | 30 May 2014 | |
CASE MAY BE CITED AS: | Moroney v Annecto Inc & VWA | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 773 | |
REASONS FOR JUDGMENT
Subject: Serious injury application
Catchwords: Three separate injuries – left shoulder, right shoulder and low back – issue as to what are the consequences of each impaired body part – issue as to whether each impairment considered separately meets the test of “serious” injury – issue as to whether plaintiff aged 62 at time ceasing work had suffered loss of earning capacity consequences which are serious.
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Aluthgamage v Select Care Personnel Pty Ltd (2012) 35 VR 494
Judgment:
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram with Mr J Valiotis | Arnold, Thomas & Becker |
| For the Defendant | Mr J C Simpson | IDP Lawyers |
HER HONOUR:
1 The plaintiff has two applications before the Court.
2 In proceeding CI-13-01560 the plaintiff makes application pursuant to s134AB of the Accident Compensation Act 1985 (“the Act”) for leave to bring proceedings to recover damages in respect of an injury to the right shoulder and, also, to the low back. The plaintiff alleges that the injury to each of those body parts, sustained in an incident which occurred whilst working for the first defendant in May or June 2006 (“the first incident”), is a “serious injury” within the meaning of paragraph (a) of the definition of serious injury in s134AB(37).
3 In proceeding CI-10-01490 the plaintiff seeks leave to recover damages for an injury to her left shoulder sustained whilst working for the first defendant on 9 August 2007 (“the second incident”). This injury is also alleged to be a serious injury within the meaning of paragraph (a) of the definition.
4 The plaintiff alleges that each of the three injuries separately have pain and suffering consequences and loss of earning capacity consequences which are serious.
Background
5 The plaintiff is presently aged 69 years, having been born on 1 November 1944. She completed Year 7 at school and commenced Year 8, but left school before completing the year. Subsequently, she worked in various jobs as a kitchen-hand, cook, packer and takeaway food assistant. Also, she nursed a number of elderly relatives in the later stages of their lives. At some point (which is not clear) she completed a Certificate 3 in Community Services and was employed for a time as a carer for elderly people with an organisation called DASSI. In 2002 she commenced employment with the first defendant as a carer for elderly people in their own homes. This involved assisting them to go to appointments and to do shopping, as well as showering them and performing some light housework. Sometimes, the plaintiff provided respite care for the carer of an elderly person by sleeping over at that person’s home, preparing meals and providing company. The plaintiff worked part-time, but there is no material tendered before the Court which details how many hours she worked each week or her hourly rate of pay. In oral evidence, the plaintiff was unable to recall whether she worked up to 15 hours per week, but stated that it was not 40 hours per week.[1] The evidence is that, in the financial year ending 30 June 2004, she earned a gross income of $21,961; in 2005 it was $20,546; in 2006 it was $15,366; in 2007 it was $16,968; and in 2008 it was $3,782.40.[2] After commencing employment with the first defendant the plaintiff completed her Certificate 4 in Community Services.
[1]Transcript (“T”) 60
[2]Plaintiff’s Court Book (“PCB”) 167
6 The first incident occurred in late May or early June 2006. The plaintiff was working for the first defendant with a client named Gordon Sinclair. He had limited capacity to communicate. The plaintiff believes he had suffered a stroke. The plaintiff had his arms on her shoulders and her arms on his shoulders in order to move him from a chair in the kitchen into a chair in the lounge. As they got to the lounge chair, the client’s knees went from under him and he fell to his left, causing a strain to the plaintiff’s right shoulder, neck and back. She suffered pain from the middle of her back to her right shoulder. She finished her shift that day but experienced more and more pain and states that the next day she could “hardly move”.[3]
[3]Plaintiff’s affidavit sworn on 1 September 2011, (“the plaintiff’s second affidavit”) paragraphs 10 and 12, PCB 91
7 The plaintiff believes that she attended her general practitioner, Dr Rosner, on 6 June 2006, a few days after the incident. He gave her time off work, which she believes was about three months, and organised physiotherapy.[4]
[4]Paragraphs 9 and 13 of the plaintiff’s second affidavit, PCB 30-31
8 Mr Ingram, on behalf of the plaintiff, told the Court that Dr Rosner’s records had been destroyed, as indicated in a letter from Dr Rosner to the plaintiff’s solicitors dated 17 August 2010.[5] In fact, the defendant tendered some 12 pages of notes from the Kent Road Medical Centre, where Dr Rosner had practised. They include a note on 6 June 2006, which appears to refer to the plaintiff having hurt “R shoulder/back/leg”. The notes are largely illegible and were not referred to by either counsel. Two later entries, on 14 and another (indecipherable) date in June 2006, appear to refer to sciatic pain in the right leg. Later, on 13 September 2006, there appears to be a reference to the right shoulder and some restriction on lifting.[6]
[5]PCB 95
[6]DCB 95
9 A report from a physiotherapist, Shelley Mathews, dated 8 June 2010[7] refers to the plaintiff having injured her right shoulder while attempting to “catch a falling client” and the fact that she had attended another physiotherapist for approximately two months before seeking treatment from Ms Shelley on 16 June 2006. Mr Shelley diagnosed a rotator cuff tear of the supraspinatus and cervicogenic pain and paraesthesia resulting from poor movement patterns following the injury. She considered that the plaintiff’s described mechanism of injury correlated with the shoulder injury. In her letter dated 8 June 2010, Ms Mathews stated that the plaintiff had responded partially to physiotherapy “gaining range of movement, strength on the neutral shoulder position and function of the upper limb with the shoulder below 60 degrees”, but pain continued to be a major problem to the extent that the plaintiff’s sleep patterns were affected.
[7]PCB 106
10 According to a report of the plaintiff’s current treating general practitioner, Dr Willaton, the notes of the plaintiff’s previous general practitioners reveal that “After seeing Dr Rosner, her GP at the time, she was referred to physiotherapy and, after approximately 3-4 months off work, the shoulder pain had improved”.[8]
[8]DCB 27
11 The plaintiff swore in an affidavit of 20 November 2009 (“the plaintiff’s first affidavit”) that, following the injuries to her right shoulder and lower back in 2006:
“I had never been completely right in those areas of my body, but I had been able to return to unrestricted duties. I was not working strictly full-time, but at times the hours that I did were quite lengthy”.[9]
However, in the plaintiff’s second affidavit, she swore that, after being off work for about three months, she returned to work on light duties and was still on light duties when she suffered a further injury in 2007,[10] that is, the left shoulder injury in the second incident. In her oral evidence, the plaintiff confirmed that the latter situation was correct.[11]
[9]Paragraph 6, PCB 10
[10]Paragraph 14, PCB 31
[11]T37
12 The plaintiff stated that she suffered some muscle soreness in the right shoulder and down to the elbow when she was working for DASSI in 2002. She thought she had been prescribed anti-inflammatory medication by a doctor, and the problem went away after a week or two.[12]
[12]T23
13 Save for the clinical notes of Dr Rosen, the letter of Ms Mathews and the reference in Dr Willaton’s report to which I have referred, I am unable to locate any reference in the tendered documents to treatment of the right shoulder until a complaint of right shoulder pain to Dr Pham (the plaintiff’s general practitioner after Dr Rosner and before Dr Willaton) on 14 November 2007.[13] By this stage, the plaintiff was being treated for her injured left shoulder. A letter from Dr Pham, dated 26 November 2007, which appears to be a referral for assessment for home help, states:
“She has L and R shoulder pain which she finds a steam mob (sic) is very difficult to use. Could you please consider other options or re-assess her situation???
She may need more home help than what she gets currently.”[14]
[13]Dr Willaton’s report dated 21 June 2010, DCB 27
[14]DCB 2
14 The next relevant reference is in a report from Dr Pham to the plaintiff’s solicitors dated 10 December 2008. Dr Pham refers to the plaintiff consulting her on 13 September 2007 “complaining of left shoulder pain, which happened when she was trying to catch a client as she was falling in the bathroom on 09/08/2007.” She went on to state, “Kathleen has had minor R shoulder pain a few years ago with aches and discomfort but she has persisted”. Dr Pham then refers to the left shoulder injury which occurred in 2007 and states: “Over the following months she developed pain in the neck and R shoulder as well.” She noted that each time she saw the plaintiff she was still complaining of pain in the shoulder, neck, and lower back as well. Dr Pham’s diagnosis was “degenerative changes of cervical spines, and rotator cuff muscles of both shoulders which was aggravated by the incident to the left shoulder on 9 August 2007.”[15]
[15]DCB 8-9
15 The second incident occurred on 9 August 2007. The plaintiff was performing her work as a carer for the first defendant with a client known as “Lucy” who was “mildly demented”. She was showering Lucy, who was sitting on a bench which lay across her bath under the showerhead. When Lucy completed her shower, she went to stand up on a bathmat, which slipped from under her. The plaintiff attempted to support her, but her entire weight fell onto the plaintiff’s left shoulder. She did not feel pain straightaway, but started to notice pain a few hours later. The next day, she called work to say that she was not able to do her shift. She has not worked at all since.
Treatment of the shoulder injury since the plaintiff ceased work in August 2007
16 After a couple of days, the plaintiff went to see Dr Reddy, because her normal general practitioner, Dr Rosner, had moved. Dr Reddy arranged x-rays, but the plaintiff was not impressed with him, and she went to see Dr Pham.[16]
[16]The plaintiff’s first affidavit, paragraphs 7, 8, 10, 11 and 13, PCB 10-11
· Dr Pham organised a left shoulder ultrasound on 20 September 2007. which was reported as showing mild sub-deltoid bursitis. Dynamic testing revealed a limited range of movement during abduction, however, the rotator cuff, long head of the biceps tendon, and AC joint appeared normal.[17]
[17]PCB 146
· Dr Pham referred the plaintiff to Mr Miller, orthopaedic surgeon, who first saw her on 11 December 2007 for evaluation of her left shoulder problem. He took a history that “she had had right shoulder problems a couple of years ago with ache and discomfort and her symptoms had rumbled on. She stated that she had more severe problems with her left shoulder which commenced in approximately August 2007”. On examination, Mr Miller noted a reduced range of motion in the left shoulder with a painful arc. His clinical impression was that she had rotator cuff pathology and he referred her for an MRI scan of the left shoulder. The scan was unable to be completed satisfactorily as the plaintiff was very claustrophobic. The incomplete study identified a lesion, possibly a large subarticular cyst in the glenoid area of uncertain significance.[18]
[18]PCB 147. The report of this scan mistakenly refers to the right shoulder instead of the left shoulder. This is clarified by Mr Miller at PCB 65.
· On 18 February 2008, Mr Miller administered a left shoulder subacromial steroid injection, but the plaintiff had a poor response.
· On 15 October 2008, the plaintiff underwent a CT scan of her cervical spine and upper thoracic spine, as she had been complaining of aching and discomfort in the neck area. This revealed multi-level spondylolytic changes in the cervical spine, particularly at C5/S1 level, where there was a degree of spinal stenosis and some narrowing of the intervertebral foramina.
· Mr Miller referred the plaintiff for an injection of Celestone and Marcain to the left subacromial bursa under ultrasound guidance. This was carried out on 20 March 2008. An x-ray on that date showed minimal bony lipping at the inferior margin of the glenohumeral joint.[19] The plaintiff showed a poor response to this procedure.
[19]PCB 148
· The plaintiff continued to see Dr Pham, who noted that, in the months following October 2007, the plaintiff developed pain in her neck and right shoulder as well. Various reports in June, October, November and December 2008 refer to pain in both shoulders.[20] By late 2008, Dr Pham noted that the plaintiff also suffered neck and lower back pain, as well as symptoms of depression, for which she was referred to a psychologist.
[20]DCB 5-10
· In 2009 the plaintiff ceased to see Dr Pham and, as from 26 June 2009, Dr Willaton has been her treating general practitioner. In her report, dated 16 November 2010, Dr Willaton noted that the records from Dr Pham indicated that the plaintiff had complained of right shoulder pain in 2006 and, again, in November 2007, but, due to concurrent problems with the left shoulder, no further action was taken for the treatment of the right. On 5 October 2009 the plaintiff presented to Dr Willaton with increasing pain in the right shoulder, which was very severe at night. The pain prevented her from sleeping, performing such things as doing her hair or showering, carrying shopping bags and doing housework. Dr Willaton described the plaintiff as being “very distressed and crying with pain”. She noted that abduction was limited to 90 degrees and the plaintiff could not internally rotate the shoulder.[21]
[21]PCB 41
· Dr Willaton organised an ultrasound of the right shoulder, which was performed on 13 October 2009. It showed a full thickness tear involving the supraspinatus tendon, which appeared longstanding and measured 15 x 16 millimetres. There was fluid within the subacromial bursa with bursal thickening suggestive of underlying bursitis, and there was reduced range of movement of the shoulder, with external rotation and abduction suggestive of adhesive capsulitis.[22]
[22]PCB 156
· Dr Willaton referred the plaintiff to Mr Miller, who assessed the plaintiff as requiring a right shoulder open rotator cuff repair relating to her work injury in 2006.[23] Dr Willaton also considered the tear was consistent with her description of her initial injury in 2006, when she was trying to support an elderly male patient who fell.[24]
[23]DCB 20
[24]PCB 41. I am satisfied that in a later report, dated 16 November 2010, Dr Willaton had mistakenly attributed the circumstances of the second incident to the first incident, but the history of the first incident contained in her report dated 24 May 2010 is in accordance with the plaintiff’s evidence.
· On 14 January 2010 Mr Miller performed open surgery by way of right rotator cuff repair and subacromial decompression with excision of the bursa.[25]
[25]PCB 72
· The plaintiff continued to have right shoulder pain, discomfort and irritability in the right shoulder and Mr Miller considered that she was suffering post-operative capsulitis. The plaintiff underwent physiotherapy and remedial massage, which was not helpful.[26]
[26]PCB 43
· Dr Willaton referred the plaintiff back to Mr Miller and he performed a hydrodilatation of the right shoulder on 17 September 2010. Mr Miller reported that this did not identify a rotator cuff tear, but there was marked irritability in the right shoulder and the procedure was not of assistance to her. He considered that her post-operative capsulitis may remain resistant to medical treatment.[27]
[27]PCB 75
· The plaintiff’s right shoulder continued to be painful and an MRI was performed on 4 March 2011. This showed multiple pathology, including osteoarthritis of the glenohumeral and acromioclavicular joints, supraspinatus tendinopathy and subacromial and subdeltoid bursitis.
· The plaintiff attended hydrotherapy at the Dorset Rehabilitation Facility which produced some improvement but, following cessation of the treatment, the shoulder gradually became more painful and stiff and has continued to be so.[28]
[28]Report of Dr Willaton dated 4 April 2013, DCB 28
· At the request of the plaintiff’s solicitors, Mr Miller reviewed the plaintiff on 5 July 2011. He stated that the plaintiff had probable rotator cuff disease in the left shoulder with capsulitis and, on the balance of probabilities, would benefit from surgery to the left shoulder by way of arthroscopic assessment and arthroscopic arthrolysis. However, Mr Miller commented that the insurer had not accepted liability for the left shoulder surgery.[29]
· On 27 November 2013, an ultrasound of the right shoulder was performed. According to Mr Miller, “This revealed that the biceps tendon was enlocated. It had a normal appearance. There was a small amount of fluid in the bicipital sheet. There was a heterogeneous supraspinatus tendon, but no evidence of specific tear. There was no evidence of impingement.”[30] Mr Miller considered that the plaintiff had had a poor response to surgery and that recent imaging suggested some evidence of arthritic disease in the acromioclavicular and glenohumeral joints. He considered there had been no improvement and the prognosis for the right shoulder is poor.[31]
· On 27 November 2013, an ultrasound of the left shoulder was performed. According to Mr Miller, “This revealed the biceps tendon was enlocated. There was tendinopathy in the supraspinatus tendon and probable partial thickness tear. There was some evidence of impingement on abduction in the left shoulder.” He discussed possible surgical intervention in the form of arthroscopy and possibly cuff repair with the plaintiff, but thought that the chances of improvement were limited and that the prognosis for the left shoulder was poor.[32]
[29]Report dated 29 July 2011, PCB 87
[30]PCB 91
[31]PCB 92
[32]PCB 92-93
The lower back injury
17 As previously mentioned, this was first reported to Dr Rosner in 2006. Over 2007 and 2008 Dr Pham noted complaints of neck and upper back pain which she considered were due to degenerative changes in the plaintiff’s cervical spine.[33] However, in her report dated 10 December 2008, she stated that every time she saw the plaintiff she complained of pain in her shoulder, neck and lower back as well.[34] The physiotherapist, Ms Matthews, in her report dated 21 May 2008, noted that the plaintiff would benefit from a lumbar roll in order to maintain the lordosis in her lumbar spine and maintain correct posture of her thoracic and cervical spine when sitting.[35]
[33]DCB 6,7 and 9
[34]PCB 9
[35]DCB 18
18 Dr Willaton noted that in 2008 the plaintiff had complained of increasing pain in the lower back following clinical advice to participate in the “Living Longer, Living Stronger Programme” [36]
[36]Dr Willaton’s report dated 16 December 2013, PCB 52
19 A CT scan of the lumbosacral spine on 21 November 2008, showed mild canal stenosis at L4/L5 and advanced disc degeneration at L5/S1.[37]
[37]PCB 50
20 A repeat CT scan on 21 March 2009 showed spondylolisthesis at L4/L5 with vacuum phenomena in the facet joints.[38]
[38]op cit
21 In March 2010, Dr Willaton referred the plaintiff to Dr Clayton Thomas to see whether she would be assisted by a chronic pain management program, but his assessment suggested that she would not.[39]
[39]PCB 53
22 Dr Willaton referred the plaintiff to a neurosurgeon, Dr Nicholas Maartens, whom she saw on 15 September 2010. He organised an MRI scan which demonstrated a Grade 1-2 instability at L4/5 due to severe degeneration of the facet joints.[40]
[40]PCB 52
23 On 25 March 2011, Dr Maartens sought approval from the first defendant’s insurer to perform an L4/5 and L5/S1 anterior interbody lumbar fusion for Grade 2 L4/5 spondylolisthesis.[41] He considered that her degree of instability at L4/5 was demonstrated on an MRI scan which showed significant subluxation on weight bearing views. He noted that the plaintiff was trying to lose weight in preparation for the operation.[42] Notwithstanding that the second defendant has accepted that the plaintiff’s low back condition is related to her employment, for reasons which are unclear (possibly related to some settlement of a WorkCover claim in the Magistrates’ Court), it is not funding the recommended surgery and the plaintiff is presently on a public hospital waiting list for such surgery.[43]
[41]PCB 101
[42]PCB 102
[43]T90-91
24 Dr Willaton noted that the plaintiff continued to suffer daily back pain, which was related to the 2006 incident, and she also suffered left-sided sciatica. Dr Willaton discussed treatment by way of facet joint injections with the plaintiff, but the plaintiff declined such treatment because she had suffered chest pain in the past while having a corticosteroid injection into one of her shoulders. Dr Willaton believes the plaintiff’s prognosis is poor in that the back pain is exacerbated by walking to the shops and doing household chores.[44]
[44]PCB 50-51
Issues
25 The defendants do not dispute that each of the three injuries, namely, the right shoulder, the left shoulder and the lower back injury are related to her employment as a home support worker with the first defendant. However, it is disputed that the plaintiff has adduced evidence in respect of each injury to demonstrate an impairment with consequences which are serious. The defendants point to various pieces of evidence from doctors and the plaintiff herself, that it is because of a combination of the three injuries that she is unable to work.
26 In particular, the defendants rely upon the fact that the plaintiff returned to work following her right shoulder injury, and her evidence is that it was only following her left shoulder injury that the right shoulder injury also deteriorated to give her the present level of pain and restriction. The defendants rely upon the impermissibility of aggregating the consequences of two injuries in order to support that each one is serious.
27 The defendants also argue that, as far as the left shoulder and the lower back are concerned, the Court cannot be satisfied that either of the current impairments are permanent because surgery has been proposed for each of those body parts. Thus, it is argued that the Court cannot be satisfied that either of the injuries are stabilised in order to make an assessment as to whether the consequences of any impairment are serious.
Evidence relating to the right shoulder
28 In the plaintiff’s second affidavit and in her most recent affidavit sworn on 7 April 2014 (“the plaintiff’s third affidavit”), the plaintiff stated that she is right handed and had no significant problems with her right shoulder in the past. Now, she has pain in her right shoulder all the time and her shoulder and arm is weak. She suffers disturbed sleep because, if she rolls onto her right shoulder, it wakes her up. As a result, she feels very tired.
29 The plaintiff has trouble with anything which requires her to reach above shoulder level, such as washing windows, mopping or scrubbing on her hands and knees, and is unable to pursue her hobby as an artist, using pastels and paints. Nor is she able to knit. She is also limited in doing gardening activity, particularly weeding, and has to confine herself to indoor potted plants and needs help lifting potting mix. She has difficulty drying herself after a bath or shower and performing toileting duties with her right hand. She has trouble dressing, such as putting on stockings or pulling clothing over her head. She has had her hair cut shorter because washing, blow drying and brushing her hair is very painful. She cannot mop, vacuum or clean bathrooms and can only iron for short periods of time. She cannot make her bed and has to take items of clothing out of the machine one at a time. It is very difficult for her to hang washing on the line.
30 It is difficult for the plaintiff to drive because of the need to have her arm extended holding the steering wheel. She is unable to use public transport during busy periods in case she cannot get a seat, because she would not be able to stand up with her arms extended overhead to hold on. She cannot lift her grandchildren and has lost the independence of driving to see them as she used to do. Her social life has diminished in that she used to enjoy social bus trips to such places as wineries. Now, she states she leads a very quiet life because of her painful shoulders and back, and only does what she must do to survive.[45]
[45]T56
31 The plaintiff stated that she has had difficulty with narcotic medication which has an effect on her stomach and causes nausea and Panadol Osteo causes constipation. She still uses Panadol Osteo in short bursts for her right arm, left arm and lower back condition, but will then stay off it for a week because of its adverse effects, during which time she will use ordinary Panadol and heat packs.[46]
[46]T26-28
32 The plaintiff confirmed in her oral evidence that following the injury to her right shoulder, there was pressure from her employer to return because, otherwise, her clients would be allocated to someone else. So, even though she still had difficulty, she returned to work because she did not want to lose her job.[47] She said that, upon returning to work on light duties, she still had pain in her right shoulder and ongoing consequences of it right up until the injury to her left shoulder in August 2007.[48]
[47]T37
[48]T40
33 She stated that, when she returned to work, she would not take any clients shopping or push wheelchairs and was mainly doing respite work, just sitting and caring for the client, but not doing any heavy duties or housework. She had never recovered full capacity for work following the right shoulder injury and prior to the injury to her left shoulder. She did not have as many clients as she had done formerly because she only had able-bodied clients who did not require a lot of effort. She stated that the occurrence of the second incident was unexpected because Lucy was able to shower herself.[49]
[49]T32-37
34 The plaintiff stated that she does not believe that she could work in the type of active occupation that she used to do. She said that the reason was “the overall body, including the left shoulder, the right shoulder and the lower back”.[50]
[50]T42
35 The plaintiff’s current treating general practitioner, Dr Willaton, by 16 November 2010 gave an opinion concerning the plaintiff’s right shoulder as follows:
“The initial diagnosis of the right shoulder was a right supraspinatus tear and right subacromial bursitis. Currently, she has post-operative capsulitis resistant to medical treatment.
Her right shoulder injury is directly related to her employment as a home support worker and the accident she had back in 2006.
Currently she has no capacity for work.
Her future prognosis is uncertain but she is highly unlikely to ever return to work given the right shoulder pain is not improving and appears to have stabilised.”
36 In a later report, dated 16 December 2013, Dr Willaton noted the imaging which had been performed for the shoulders on 29 November 2013 (showing right supraspinatus tendinosis, right degenerative disease of the glenohumeral joint, right subacromial and subdeltoid bursitis, and left full thickness tear, supraspinatus tendon, moserate (sic) left bursal infusion). She also noted the most recent imaging for the lower back in 2011 (grade 1-2 unstable spondylolythesis at L4/L5 and degenerative disc disease of the lumbosacral spine). Referring to restrictions relating to all three conditions, Dr Willaton opined that:
“She has no capacity for present employment.
The long term prognosis is not positive in that she has had a chronic pain condition now for 7.5 years and the effect of this injury has had a significant impact on her quality of life.”[51]
[51]PCB 53
37 In her most recent report, dated 9 April 2014, Dr Willaton stated:
“It is my opinion that these injuries individually influence her capacity to return to work as a home support worker. She would definitely not be able to return to work for reasons of left shoulder pain or right shoulder pain or lower back pain.”[52]
[52]PCB 53A
38 The plaintiff’s treating surgeon, Mr Miller, noted that, after the surgery he performed on the plaintiff’s right shoulder, on 14 January 2010, the plaintiff reported ongoing shoulder pain, discomfort and irritability and he thought there was a degree of post-operative capsulitis. In his report, dated 15 June 2010, he considered the prognosis for the right shoulder to be good or fair, but did opine that the plaintiff would have difficulty returning to work that involved repetitive arm actions, lifting of weights more than two kilograms, or using the arms in the above-shoulder position. He foreshadowed that, in his view, there may not be a return to work.[53]
[53]PCB 73
39 By 4 November 2010, Mr Miller noted that there was marked irritability in the right shoulder and that hydrodilatation had not been of assistance to her. He considered that her post-operative capsulitis may remain resistant to medical treatment.[54] By 31 January 2011, he stated that the plaintiff had had a poor response to conservative measures and now had features of capsulitis and a frozen shoulder. He reduced the prognosis to fair/poor.[55] He noted her left shoulder problem and her complaints of pain in the neck and stated that:
“Given my understanding of her age, education and work experience I do not envisage a return to work due to the combined effects of the neck, left and right shoulders.”[56]
[54]PCB 75
[55]PCB 80
[56]PCB 81
40 By 3 February 2014, Mr Miller had the most recent ultrasound of the right shoulder. He stated that this suggested some evidence of arthritic disease in the acromio-clavicular and glenohumeral joints. He noted no improvement and downgraded her prognosis for the right shoulder to poor. He also noted similar pathology in the left shoulder, with a poor prognosis. He thought it unlikely that she would benefit from further surgery to the right shoulder and maintained his view that he was pessimistic about her capacity to return to work.
41 A medico-legal opinion from Mr Kossmann is that she has persisting significant movement restriction and pain in her right shoulder indicating capsulitis and a frozen shoulder. Her prognosis was moderate to poor and affected her activities of daily living, in particular, her personal hygiene. In his most recent report, dated 26 November 2013, he expressed the view that her prognosis regarding her bilateral shoulder condition, cervical spine and lumbar spine is complex and mostly to be regarded as bad. He did not expect any significant improvement. In his opinion, the plaintiff has no capacity for employment due to these conditions.[57]
[57]PCB 143-144
42 The defendant had the plaintiff examined by Mr Michael Dooley. In a report, dated 4 April 2014, he opined that, in relation to all three injuries, she showed ongoing pain and disability greater than one would expect and that a psychological reaction had influenced her ongoing symptoms. He stated:
“From an orthopaedic viewpoint only Ms Moroney would have a physical capacity to carry out some light physical work and clerical duties. She did not undertake secondary schooling and she has no specific training in relation to many of the tasks that she would be required to carry out in a modern clerical position.”[58]
Conclusion in relation to the right shoulder in relation to improvement and whether pain and suffering consequences are serious
[58]DCB 79-80
43 This is a case where there has been no attack upon the plaintiff’s credit. It was never suggested to her in cross-examination that the limitations which she claims in relation to her right shoulder were other than as stated by her. Although it is plain that she has developed some psychological symptoms by way of depression, I do not accept Mr Dooley’s view that these are significantly influencing her ongoing symptoms. In particular, Mr Dooley is unaware of the most recent ultrasound to the plaintiff’s right shoulder. Moreover, the plaintiff impressed me as a straightforward witness and it was never put to her that the pain and limitation, in respect of her right shoulder, was other than what she claimed it to be. The defendant admitted that it had had her under surveillance for some 15 hours on two separate dates in December 2013 and for a further 15 hours in March 2014. No evidence was called from the person or persons who undertook such surveillance, nor was some five and three-quarter minutes of video film, taken in December last year, put to the plaintiff or tendered in evidence. I infer that whatever was observed by way of surveillance, and whatever film was taken, would not have assisted the defendant’s case and I am more readily able to accept the plaintiff’s evidence.
44 The material before the court indicates consistent complaints of pain and limitation of movement in the right shoulder since the first incident. The plaintiff has undergone surgery and hydrodilatation which she described as extremely painful and neither have been effective in returning her shoulder to a state where it is pain-free and fully functional as it was prior to mid-2006 when she injured it. There is sound objective evidence, by way of various investigatory procedures, and most recently the ultrasound in November 2013, that there is an organic basis for the pain and restrictions which the plaintiff claims. She had never fully recovered from the right shoulder injury when she returned to work some three or four months later. Indeed, her treating physiotherapist, Mr Mathews, noted only partial response to physiotherapy, in the sense of gaining function of the shoulder below 60 degrees.[59] The plaintiff stated in her oral evidence that when she returned to work she:
“Worked at a pace where (she) could recover the next day, rest up. (She) didn’t do a lot of hours for that reason. (She) just paced (herself) so (she) could continue on.”[60]
[59]PCB 106
[60]T59
45 I am satisfied that the plaintiff’s condition of pain and restriction of movement of her right shoulder has steadily declined since she returned to work in late 2006. This is consistent with the history of the 2009 ultrasound demonstrating a longstanding tear of the rotator cuff, the findings on the repair surgery performed by Mr Miller, and the post-operative development of capsulitis and arthritic change. It is also reflected in the increasingly pessimistic prognosis of her treating surgeon, Mr Miller, since he performed surgery on the right shoulder on 14 January 2010. His view is shared by her treating physiotherapist who, in her report dated 8 June 2010, described her injury to the right shoulder as having stabilised at a very low functioning level such that no further physiotherapy would help, her prognosis was poor and her capacity to return to employment dismal.[61]
[61]PCB 107
46 The plaintiff’s pain has continued unabated in her right shoulder since the surgery performed by Mr Miller. Her range of movement has not improved. She is confined in anything which involves significant lifting with her dominant right hand or reaching above shoulder height. This has seriously eroded her capacity to be independent on a daily basis in matters of personal hygiene, dressing and everyday activities of a domestic nature, as well as of a recreational nature, such as her artwork, knitting and being able to lift her grandchildren, as well as driving without limitation. These, in my view, are pain and suffering consequences which are serious to her and serious when compared to such consequences when judged by comparison with other cases in the range of possible impairments of armed function and, in my view, may be fairly described as more than significant or marked and as being at least very considerable.
47 Although some of the doctors have opined that, by reason of the plaintiff’s right arm injury, left arm injury and back injury, she is unable to work, I am satisfied that her main treating doctors, Dr Willaton and Mr Miller, have given separate consideration to her right injury such that, on its own, I am satisfied that it prevents her from working. In particular, on 27 January 2011 Mr Miller measured the range of motion in the left shoulder and in the right shoulder. The restrictions to each shoulder are very similar.[62] Since that time Mr Miller has reduced his prognosis for the right shoulder from fair/poor to poor.
[62]See Mr Miller’s report dated 31 January 2011, PCB 79
48 The plaintiff was 62 and a half years of age when she ceased work. She has no schooling beyond the age of 13 years and has only ever worked in positions where she is reliant upon her physical strength. Taking into account the definition of suitable employment in s5 of the Act, I consider, having regard to the physical incapacity referable to her dominant right arm, the heavy aspects of her pre-injury employment as a carer for elderly persons, the fact that she is now 69 years old and has no other qualifications or work experience and is unlikely to be able to complete any occupational rehabilitation, that she is now totally incapacitated for work. As part of the serious pain and suffering consequences, I take into account that she loved her job and regarded it as more than a job.
49 Whether her total incapacity for work, because of her right shoulder injury, is a serious loss of earning capacity consequence I will consider below.
The evidence relating to the left shoulder
50 The plaintiff’s evidence in her first affidavit, her third affidavit, and in her oral evidence relating to her left shoulder, is that it continues to be constantly painful and she is restricted in movement of the left shoulder in a very similar way to that of the right shoulder. Human beings by nature have the use of two arms and, hence, many of the things which the plaintiff is unable to do because of her injury to the right shoulder are also consequences of the pain and restriction of movement in the left shoulder. This is not to say in any way that it is appropriate to aggregate the left shoulder and the right shoulder in order to determine whether either of them is a serious injury. It is simply common sense that there are many things which one does which requires the use of both arms.
51 The plaintiff deposed to a specific problem in operating the gears of a manual car with her left arm which caused her to give up driving for a time, but, even with an automatic car, she still finds it difficult to have both arms outstretched holding the steering wheel for any very lengthy period of time.
52 The plaintiff stated that she has constant pain from the left shoulder to the elbow and pins and needles in her hand.[63] This causes her to have difficulty holding a phone for more than a couple of minutes. Her shoulder aches and she rests the phone on her left shoulder on loud speaker.[64] Other activities, such as matters of personal hygiene, dressing, knitting, lifting her grandchildren and carrying out household tasks, involving lifting or pushing or reaching, are adversely impacted upon equally by the impairment of her left shoulder injury and right shoulder. This is because it is extraordinarily difficult, if not impossible, to perform these tasks with one arm only. Moreover, the fact that the plaintiff’s right shoulder has pain and limitations means that the pain and limitations in her left shoulder are unable to be compensated for by her using the right shoulder. Thus, the impairment consequences for each shoulder are worse because the other shoulder is also impaired. That is not to say that the shoulders can be assessed as one body function or aggregated, but, rather, as a matter of commonsense, one must look at the plaintiff’s overall body functioning in order to determine whether the impact of the impairment of one body function is serious.
[63]T30
[64]T48
53 On 8 December 2012 Dr Willaton commented that there was no capacity for employment by virtue of the left shoulder injury. At that stage, she thought that the plaintiff’s left shoulder condition had not yet stabilised but the prognosis was guarded due to flares in pain and difficulty the plaintiff had managing simple activities of daily living.[65]
[65]PCB 45
54 As previously mentioned, in her most recent report dated 9 April 2014, Dr Willaton stated that the plaintiff would be unable to return to her work as a home support worker by reason of her left shoulder pain or right shoulder pain or lower back pain.
55 Also as previously mentioned, when Mr Miller measured the range of motion of each shoulder the left was similarly restricted to the right.[66]
Conclusion in relation to the left shoulder in relation to impairment and whether pain and suffering consequences are serious
[66]PCB 79
56 The daily pain and the erosion of the capacity to perform daily activities which we all take for granted, involving reaching or pushing or pulling, in my view, are serious consequences of the left shoulder impairment, just as I held that similar restrictions were serious consequences of the right shoulder impairment.
57 The defendant has submitted that, because there was a suggestion that surgery may be undertaken on the left shoulder, this injury should not be regarded as having stabilised and, hence, the court could not be satisfied that the plaintiff had a permanent impairment to her left shoulder. In this regard I note that Mr Miller, in his report dated 31 January 2011, stated:
“I believe given the poor response to surgery in the right shoulder she is not planning to proceed with surgery to the left shoulder and the prognosis for this is fair/poor.”[67]
[67]PCB 80
58 In his most recent report, dated 3 February 2014, Dr Miller stated as follows:
“There is similar pathology in the left shoulder with evidence of rotator cuff disease and possible impingement. There is a possible partial thickness tear and some evidence of arthritic disease in the acromio-clavicular and glenohumeral joint. I am now of the view that the prognosis for the left shoulder is poor.”
59 He went on to state:
“It is possible, but in my view unlikely that she would benefit from surgery to the left shoulder.”[68]
[68]PCB 93
60 He also stated that he was of the opinion that her injuries have substantially stabilised.[69]
[69]PCB 94
61 The plaintiff stated in her third affidavit:
“My left shoulder remains constantly painful, however the extent of the pain fluctuates. I have been advised that I need another operation on the shoulder, however there are no guarantees that it will be fixed. I remain concerned about the prospect of a further operation that may leave me in a worse condition.”[70]
[70]Paragraph 8, PCB 13C
62 In her oral evidence the plaintiff did not state that she definitely proposed to have surgery on her left shoulder and, indeed, it is not now advised by her treating surgeon, Mr Miller.
63 I note that Mr Kossmann, in his most recent report, stated that, even if the plaintiff were to undergo surgery to her left shoulder, there is no guarantee that her shoulder function would increase.[71]
[71]PCB 128
64 In these circumstances, I consider it appropriate to regard the plaintiff’s left shoulder injury as having stabilised, with its current restrictions in motion and constant pain. There is a sound organic basis for such pain and restriction of movement. The most recent demonstration of this is on the ultrasound of the shoulder taken in November 2013. There is no basis for finding, on the balance of probabilities, that the plaintiff will improve from her current situation. Accordingly, I regard her current impairment to the left shoulder as being permanent.
65 I reiterate the comments that I made in relation to the right shoulder in terms of the impact that the left shoulder, on its own, has had on her work capacity. That is, it prevents the plaintiff from engaging in any physical type of employment where she would need to reach above shoulder height or lift or push or pull to any significant extent. I reiterate that I consider the preponderance of evidence in this case to be such that she is unable to work at all and that by reason of her age, education and work experience she is not fit for suitable employment and, hence, is totally incapacitated by reason of her left shoulder injury considered on its own.
66 I will deal below with whether the total incapacity for work arising from her left shoulder injury constitutes a loss of earning capacity consequence which is serious.
Analysis of the evidence relating to the lower back injury
67 I have previously summarised the history of the plaintiff’s back injury. It is not disputed that she has a Grade 2 L4/5 spondylolisthesis which requires surgery by way of L4/5 and L5/S1 anterior inter-body lumbar fusion. In his most recent report, her treating surgeon, Dr Maartens, noted that, in a weight-bearing situation, there is perhaps one or two millimetres of subluxation, however, when “one compares the subluxation from a recumbent position, as on the sagittal views on the MRI scan and the weight-bearing flexion and extension views, there is a significant difference of 6–7 millimetres. There is absolutely no doubt about this.”[72]
[72]Report dated 29 April 2013, PCB 102
68 Mr Dooley, on behalf of the defendant, expressed a general view about the constancy and intensity of Ms Moroney’s ongoing pain, referable to all three injuries as being greater than one would expect to see for her condition, and thought she had a psychological reaction that significantly influenced her ongoing symptoms. However, nowhere in his report did he detail any symptoms referable to the lumbar spine which would not be consistent with what he described as narrowing of the spinal canal at L4/5 level and a Grade 1 degenerative spondylolisthesis. Also, although his report is dated 4 April 2014, he nowhere refers to the MRI scans of the plaintiff’s lumbar spine taken in either a weight-bearing or recumbent position, as Dr Maartens had done. The absence of reference to these scans, in combination with a lack of detail about what symptoms in her lumbar spine he considers might be influenced by any psychological reaction, cause me to prefer the opinion of the treating surgeon, Dr Maartens.
69 In final submissions, Mr Simpson conceded that the plaintiff’s lower back injury had been accepted by the Victorian WorkCover Authority as having been caused by work[73] and that the back injury is “a serious, significant structural displacement issue to be operated upon”.[74]
[73]T89
[74]T88
70 There is no doubt in my mind that the plaintiff is in a great deal of trouble with her unstable lower back condition. In the course of the hearing, she appeared very genuinely to be unable to get comfortable for any significant period, either sitting or standing. I have no difficulty, in light of the substantial instability shown on the MRI scans, in accepting that the plaintiff does have difficulty with sitting and standing, as her back becomes very painful, and that she begins to feel pain going down her lower back to her legs when standing, and she needs to sit down and rest. I also accept that she has trouble with walking over about 500 metres at a time. She has experienced difficulty taking certain medication and now takes up to six Panadol Osteo per day for her shoulder problems and her back. However, even Panadol Osteo causes side effects so she has to go off it periodically.[75]
[75]Plaintiff’s third affidavit, paragraphs 6 and 7 PCB 13B and C, and T26–28
71 The essence of the defence of the plaintiff’s claim that her lower back is a serious injury is that she is listed to undergo spinal surgery and, until that surgery has been undergone, it cannot be said that her condition has stabilised and she suffers a permanent impairment.
Conclusions in relation to the lower back impairment and whether it has pain and suffering consequences which are serious
72 It is now approximately eight years since the plaintiff injured her back. In that time, her condition has steadily worsened. Three years ago, her treating surgeon recommended that she undergo a two-level fusion of the spine. It is plain that he was concerned to ensure that the plaintiff lost weight before the surgery was undertaken. He suggested that she should lose 20 kilograms and, thus far, apparently she has lost only half that amount. It is difficult because the pain and restriction of movement in her unstable spine restrict her very greatly in what exercise she can undertake.
73 In a medico-legal report procured by the plaintiff’s solicitors from Mr Kossmann, dated 26 November 2013, he stated that, in his opinion, the prognosis for the plaintiff’s back was moderate to bad and, even though she had lost some weight, it remained to be seen whether it was sufficient to be adequate for surgery. His opinion was the same as he had expressed in his earlier report dated 12 May 2011, namely, that “it cannot be guaranteed that she will become symptom free, even after successful operation.”[76] Mr Kossmann had earlier expressed his view that it would be a technically challenging operation, due to the plaintiff’s weight.[77]
[76]PCB 143 and 128
[77]PCB 129
74 I note that the defendant’s own expert, Mr Dooley, expresses the view that, “given Ms Moroney’s psychological condition, the chances of surgery providing lasting improvements in terms of pain and function would not be high”.[78]
[78]DCB 79
75 There must be a limit to the number of years that a person has to wait before it is considered that her injury is stabilised, particularly in the light of the unacceptably long waiting lists for surgery in public hospitals in Victoria. If the surgery is undertaken, there is a real question mark over how effective it might be. There is no evidence that it can cure her spinal condition. It may or may not help her pain, but, even if it did lessen her pain, she then has two levels of her spine which are immobilised so that her back is stiff and further reduced in its movement. I am satisfied that the plaintiff has suffered a permanent impairment to her lumbar spine. I am satisfied that this impairment has given rise to consequences, by way of pain and restriction of movement, which impact upon her capacity to do the most basic of everyday tasks, such as walking and bending, as well as sitting or standing for any period of time.
76 I am also satisfied that the impairment to the plaintiff’s back alone (leaving aside each of her shoulder injuries) would prevent her from returning to employment of any sort, given that she is now 69 years of age. As previously expressed when dealing with her shoulder injuries, in my view, there is no rehabilitation, given her educational level and experience in manual work, which would be capable of qualifying her for suitable employment. As with each of the shoulders, I take into account that she did love her job and that it was more than just a job to her in that it had a social context. This factor, along with the pain and restriction of movement of the lumbar spine, convinces me that the pain and suffering consequences of the impairment are serious to her and, when judged by comparison with other cases in the range of possible impairments, may be fairly described as being more than significant or marked and as being at least very considerable.
77 The question of whether the plaintiff’s total loss of earning capacity relating to her low back has consequences which meet the test of being serious will be discussed below.
The question of whether the plaintiff’s loss of earning capacity consequences are serious
78 I have found that each of the plaintiff’s three injuries, on its own, has impairment consequences which would prevent her from working in any capacity at all. Contrary to the defendants’ submissions, I do not consider that the plaintiff’s oral evidence that she could not work because of “the overall body, including the left shoulder, the right shoulder and lower back”[79] is determinative of the issue whether each of the injuries considered separately prevent her from working. I must take into account the whole of the evidence.
[79]T42-43
79 Thus, it is a situation, as envisaged in Grech v Orica Australia Pty Ltd,[80] where there is more than one compensable injury which has the same consequence, namely that the plaintiff is unable to work. In arriving at this conclusion, I have taken into account the entirety of the evidence and, in particular, the evidence that relates to each of the three injuries on its own.
[80](2006) 14 VR 602 at [56]
80 The plaintiff ceased work on 9 August 2007, three months before she would have turned 63 years of age on 1 November 2007. The plaintiff’s evidence is that she “wanted to work until at least 70”. Under cross-examination it was put to her that she would have stopped working at about age 65 and she answered, “Not if I could help it”. She went on to say, “I wanted to work until I was at least 70 and further on if I could”. She confirmed that the work she envisaged was as a carer, and that she has two friends who work as carers for other agencies, one who is 73 and one is 70.[81]
[81]T57
81 On behalf of the plaintiff, Mr Ingram submitted that there was no evidence contrary to the expressed intention of the plaintiff to work to at least age 70. Nor was there any evidence that, prior to the injuries to her shoulders and back, she would not have been able to fulfil that intention. He submitted that the loss of at least seven years of her working life is a loss of earning capacity consequence which meets the test of serious.
82 Mr Ingram relied upon the decision of the Court of Appeal in Aluthgamage v Select Care Personnel Pty Ltd.[82] In that case, the plaintiff had been working as a nurse in an aged care facility when she suffered an injury which caused her to cease work at what would appear to be the age of 65 years. I have assumed this from the Court of Appeal judgment which stated that when the plaintiff ultimately ceased her attempts to return to work she had somewhat less than five years of potential work as a nurse.[83] It was noted that the plaintiff in that case had worked as a qualified nurse in a number of countries for more than 40 years, and was plainly qualified to continue working in that capacity, but faced difficulties in obtaining employment in other areas of work. By the date of the trial she was 69 years of age. The Court of Appeal accepted that, having regard to her pre-injury employment, her age, education, skills and work experience, she had no practical capacity for suitable employment after her failed attempts to return to nursing and her age effectively precluded successful retraining. Accordingly, it found that she had suffered at least a very considerable loss of earning capacity as a result of her injuries when judged by comparison with other issues in the range of possible cases and that such loss of earning capacity exceeds 40 per cent or more in accordance with s134AB(38). In Aluthgamage, the plaintiff had been working three days a week before she was injured. Her work caring for geriatric patients involved some heavy and potentially physically stressful elements. The court accepted that the plaintiff had an incentive to work because her husband had ceased work and she wanted to continue mortgage payments on a jointly owned investment property. Also, following her injury, she had attempted to return to work on a series of occasions at a variety of nursing facilities.
[82](2012) 35 VR 494
[83]ibid 46
83 In this case, I have not been assisted by evidence of any particular detail. Indeed, so poorly drawn were the plaintiff’s affidavits and so patchy was the evidence led from her in evidence-in-chief, that I do not even know how many days a week she worked or what hours she did work on those days. All I do know is that it was part-time work and that, in the years preceding 2007, she earned the amounts which I have set out earlier in this judgment.
84 It is not clear when the plaintiff obtained a Certificate III in Community Services. In her evidence-in-chief there is a vague reference to her having started working as a carer in 2000 as her “first sort of full-time career work” and completing one course and part of a second course for that purpose.[84] Later in her evidence she stated that when she first started work with the first defendant (some time in 2002), she was also working with DASSI for a short time, that is, she was employed by both agencies.[85] There is no explanation as to why she ceased working for both agencies and why she was working only part-time with the first defendant when she was injured in 2006. There is no evidence as to whether carer’s work, which involves heavy aspects of handling patients, is generally available beyond the age of 65 years.
[84]T23, L12-17
[85]T24, L16-17
85 On the other hand, it seems that, after the plaintiff’s children had become independent, and the plaintiff had finished nursing some elderly relatives in the last stages of their lives, she did train as a carer in or about 2000. By this stage she would have been either 55 or 56 years old. She appears to have worked as a carer for in excess of six years. The plaintiff is a single person and, since she has been unable to work, she has apparently been in receipt of the aged pension.[86]
[86]The plaintiff’s second affidavit, paragraph 19, PCB 33
86 The plaintiff stated, under cross-examination, that after she injured her right shoulder she returned work because her employer was putting pressure on her indicating that her clients would go to someone else if she did not return to work. Thus, she spoke to her physiotherapist and also to her doctor, and she returned to work on light duties because she said she did not want to lose her job.[87] By this stage, the plaintiff was approximately 62 years of age, and she stated that, although she still had pain and problems with her right shoulder, she “just worked on”.[88] She returned to work, even though the physiotherapist had told her that her injuries might take a bit longer to heal. She stated:
“I went back to work. I still had problems. I more or less love my job. So I wanted to get back to work and I put up with it. I love my job. It was more than a job. It was social as well.”[89]
[87]T37
[88]T40
[89]T59
87 I have found the question of whether the plaintiff has suffered serious loss of earning capacity consequences to be a difficult one. I would have been assisted by her legal representatives providing greater detail in her affidavits and adducing greater detail in her oral evidence. After anxious consideration, I have determined that there are a number of factors in this case which are similar to those in Aluthgamage. In that case, the plaintiff was a couple of years older than the plaintiff in this case by the time she ultimately ceased work. Although the plaintiff in this case does not have a solid history of 40 years of nursing like the plaintiff in Aluthgamage, I consider it to be of some weight that, after having been a homemaker with bits and pieces of full-time or part-time work in unskilled positions and then nursing elderly relatives, at a relatively late age she took the trouble to undertake a qualification as a carer. Like the plaintiff in Aluthgamage, notwithstanding that she suffered a serious injury to her right shoulder, she did return to work (at the age of 62 years) and work on in light duties as a carer until the injury to her other shoulder. To me this shows that she was serious about wanting to pursue her work, when others, by the age of 62, might have been feeling a bit tired and not persevered.
88 Just as the plaintiff in Aluthgamage had an incentive to keep working because she had an investment property to pay off, so, too, do I find that the plaintiff, being single, had an equally legitimate incentive to continue working. Moreover, I accept her evidence that she did enjoy her work very much, which is understandable because it is very worthy and rewarding work, and, also that she derived a social aspect from the work, which she misses. Thus, I accept her evidence that, in the absence of each of the three subject injuries, she most likely would have continued to work to age 70. I have also taken judicial notice that in this day and age it can no longer be assumed that the retirement age is necessarily 65 years of age. The Australian Government has now announced its intention to increase the age at which one would qualify for an aged pension from 65 to 70 years. For all of these reasons, I consider that it is reasonable to accept that the plaintiff has lost a potential of some seven years’ employment. I am satisfied that this consequence is serious to her. Consistent with the decision in Aluthgamage, I am satisfied that she has suffered at least a very considerable loss of earning capacity as a result of her injuries when judged by comparison with other cases in the range of possible cases. As I have found that by reason of each of the three subject injuries considered on their own, she has no earning capacity, the plaintiff has satisfied the “40 per cent or more” test in accordance with s134AB(38).
89 Accordingly, I make the following orders:
90 In proceeding CI-13-01560 the plaintiff is given leave to commence proceedings to recover damages for pain and suffering and loss of earning capacity relating to an injury to her right shoulder and to her low back arising out of, or in the course of, or due to the nature of her employment with the first defendant in or about May or June 2006.
91 In proceeding CI-10-01490, the plaintiff is given leave to recover damages for pain and suffering and loss of earning capacity for injury to her left shoulder arising out of or in the course of or due to the nature of her employment with the first defendant on 9 August 2007.
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